Citation Nr: 0021294
Decision Date: 08/14/00 Archive Date: 08/23/00
DOCKET NO. 96-18 448 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to service connection for a heart disability.
2. Entitlement to a rating in excess of 30 percent for post-
traumatic stress disorder (PTSD), prior to October 30,
1998.
3. Entitlement to an increased rating for degenerative joint
disease of the cervical spine, currently evaluated as 10
percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from May 1961 to January
1968, from June 1986 to August 1987 and from September 1990
to July 1991, which includes service in the Reserves.
This matter is before the Board of Veterans Appeals (Board)
on appeal from rating decisions of the Regional Office (RO).
In a rating decision dated March 1995, the RO granted service
connection for PTSD and degenerative joint disease, C4-5 and
C5-6. A 10 percent evaluation was assigned for each of these
disabilities, effective April 1994. The veteran disagreed
with the assigned ratings. In addition, the RO denied
service connection for a heart disability. Subsequently,
based on the receipt of additional evidence, including the
reports of Department of Veterans Affairs (VA) examinations,
the RO, by rating action in September 1996, increased the
evaluation assigned for PTSD to 30 percent, effective April
1994. Thereafter, following another VA psychiatric
examination in October 1998, the RO, in April 1999, assigned
a 50 percent rating for PTSD, effective October 30, 1998.
During the hearing at the RO in March 1996, the veteran
testified that he would be satisfied with a 50 percent
evaluation for PTSD. Transcript, p. 3. In AB v Brown,
6 Vet. App. 35 (1993), the United States Court of Appeals for
Veterans Claims (Court) held that, where there is no clearly
expressed intent to limit the appeal to entitlement to a
specific disability rating for the service connected
condition, the RO and the Board are required to consider
entitlement to all available ratings for that condition. In
this case, since the veteran specifically asserted that he
would be satisfied with a 50 percent evaluation for PTSD, the
only issue before the Board at this time concerns whether
that rating was warranted prior to October 30, 1998. The
Board has, accordingly, limited the issue as set forth on the
preceding page.
As the veteran takes issue with the initial rating assigned
when service connection was granted for both PTSD and a
disability of the cervical spine, the Board must evaluate the
relevant evidence since the effective date of the award; it
may assign separate ratings for separate periods of time
based on facts found - a practice known as "staged" ratings.
Fenderson v. West, 12 Vet. App. 119 (1999).
FINDINGS OF FACT
1. The veteran's claim for service connection for a heart
disability is supported by cognizable evidence
demonstrating that the claim is plausible or capable of
substantiation.
2. Prior to November 7, 1996, the veteran's PTSD was
manifested by a depressed mood and mild impairment of
memory, without evidence of hallucinations or delusions.
It was not productive of more than definite industrial
impairment.
3. As of November 7, 1996, and prior to April 30, 1998, the
veteran's PTSD was manifested by sleep impairment, a mild
memory loss and irritability. There was no evidence of
panic attacks, flattened affect or impaired abstract
thinking.
4. Prior to April 24, 1998, the veteran's cervical spine
disability was not manifested by more than slight
limitation of motion, including functional loss due to
pain.
5. The VA examination on April 24, 1998 demonstrated
limitation of motion with pain, but the probative evidence
does not show more than moderate limitation of motion,
including functional loss due to pain.
CONCLUSIONS OF LAW
1. The veteran's claim for service connection for a heart
disability is well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
2. The criteria for a rating in excess of 30 percent for PTSD
prior to April 30, 1998 have not been met. 38 U.S.C.A.
§§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.132,
Diagnostic Code 9411 (as in effect prior to November 7,
1996); 38 C.F.R. § 4.130, Diagnostic Code 9411 (effective
on November 7, 1996).
3. The criteria for a rating in excess of 10 percent for
degenerative joint disease of the cervical spine prior to
April 24, 1998 have not been met. 38 U.S.C.A. §§ 1155,
5107(a) (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes
5010, 5290 (1999).
4. The criteria for a 20 percent rating for degenerative
joint disease of the cervical spine have been met
effective April 24, 1998. 38 U.S.C.A. §§ 1155, 5107(a)
(West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5010,
5290 (1999); Fenderson v. West 12 Vet. App. 119 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection
Factual background
A service department examination in February 1985 shows that
the veteran's blood pressure readings were 120/80 and 130/90.
He was referred for a five-day blood pressure check later
that month, and all readings were normal. On examination
for the Reserves in September 1991, the heart and vascular
system were normal. Blood pressure was 122/88. In November
1991, blood pressure was 130/98. The assessment was elevated
blood pressure. In July 1993, blood pressure readings were
136/90 and 128/88.
The veteran was admitted to a private hospital in September
1993. It was noted that he had a known history of
hyperlipidemia. He was admitted through the emergency room
with acute anterior chest pain for about one hour. The final
diagnosis was acute anterior myocardial infarction.
The veteran was afforded a general medical examination by the
VA in July 1994. He stated that he had been under
significant stress because of his loss of employment
following his return from his experiences in the Persian
Gulf, and felt that the stress of these changes contributed
to the myocardial infarction. Following an examination, the
assessment was status post myocardial infarction in September
1993, with no prior cardiac symptomatology. The examiner
commented that the veteran had significant stressors prior to
the myocardial infarction, including activation from the
Reserves for Desert Storm and the loss of employment upon his
return.
On VA examination in June 1996, the veteran stated that he
was not aware of any heart disease until he had a myocardial
infarction in 1993. He related that he had been on
medication since then for hypertension, coronary artery
disease and hyperlipidemia. The assessment was coronary
artery disease with a history of myocardial infarction in
1993. It was indicated that the veteran had hypertension
since then, and was currently in good control of his blood
pressure and had no angina or other acute cardiac symptoms
suggestive of insufficient coronary or left ventricular
dysfunction. He had a smoking history back to the 1960's, as
well as a family history of hyperlipidemia and was currently
being treated. The examiner commented that these, as well as
diet, would all be factors contributing to the veteran's
coronary artery disease. He added that the veteran had been
in treatment for PTSD for the last few years, with stressors
going back to the 1960's. The effects of these chronic
stressors would also be one of the several factors
contributing to coronary artery disease, as would the general
personality factors unrelated to specific stressors.
Analysis
Service connection may be granted for disease or injury
incurred in or aggravated by service. 38 U.S.C.A. §§ 1110,
1131 (West 1991).
Where a veteran served 90 days or more during a period of war
or during peacetime service after December 31, 1946, and
cardiovascular disease becomes manifest to a degree of 10
percent within one year from date of termination of such
service, such disease shall be presumed to have been incurred
in service, even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (1999).
Service connection may also be granted for disability which
is proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a) (1999). When there
is aggravation of a nonservice-connected condition that is
proximately due to or the result of service-connected disease
or injury, the claimant will be compensated for the degree of
disability over and above the degree of disability existing
prior to the aggravation. Allen v. Brown, 7 Vet. App. 439,
448 (1995).
In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.
App. 498 (1995).
Initially, the Board points out that it is analyzing the
evidence solely for the purpose of determining whether the
veteran has submitted a well-grounded claim for service
connection for a heart disability. It is undisputed that the
veteran currently has cardiovascular disease. The question
in this case is whether it is related to service or to a
service-connected disability. The fact remains that a
physician has stated that the veteran's PTSD was a factor in
contributing to coronary artery disease. Under the
circumstances of this case, the Board finds that the claim
for service connection for a heart disability is well
grounded. This conclusion is premised on the fact that a
physician has opined that there is a relationship between the
veteran's cardiovascular disease and his service-connected
PTSD.
Increased Ratings
The following principles apply to both claims for increased
ratings. The initial question before the Board is whether
the veteran has submitted well-grounded claims as required by
38 U.S.C.A. § 5107. The Court has held that a well-grounded
claim is one which is plausible, meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet. App.
78 (1990). In this case, the veteran's statements concerning
the severity of the symptoms of his service-connected PTSD
and cervical spine disability that are within the competence
of a lay party to report are sufficient to conclude that
these claims are well grounded. Proscelle v. Derwinski,
2 Vet. App. 629; Espiritu v. Derwinski, 2 Vet. App. 492
(1992). All relevant evidence has been obtained, and no
further development is necessary in order to comply with the
duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991).
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic
codes identify the various disabilities. The VA has a duty to
acknowledge and consider all regulations that are potentially
applicable through the assertions and issues raised in the
record, and to explain the reasons and bases for its
conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, see 38 C.F.R. § 4.1 (1999), the
regulations do not give past medical reports precedence over
current findings. Francisco v. Brown, 7 Vet. App. 55 (1994).
I. A Rating in Excess of 50 Percent for
PTSD Prior to October 30, 1998
Factual background
The veteran's discharge certificates reveal that he served in
Vietnam and the Persian Gulf. Among the medals he received
were the Vietnam Service Medal and the Southwest Asia Service
Medal.
In July 1994, the veteran submitted a statement describing
the stressors to which he was exposed in service.
The veteran was afforded a social and industrial survey by
the VA in July 1994. It was noted that he was somewhat
defensive, moderately dysphoric and moderately irritable
throughout the interview. The veteran appeared to have
strong feelings of entitlement for both job security and
financial support. He repeatedly expressed a considerable
level of distrust toward the government and the VA. He
claimed that he had had difficulties with depression since
1991, when he was involved in Desert Storm. These
experiences caused him to recall his time in Southeast Asia.
The veteran claims that intrusive recollections of Vietnam
include his recalling how he worked one day at a time and
waited out patiently his tour, wishing for it to be over.
The veteran did not indicate intrusive recollections of
traumatic experiences. He claimed no frank flashbacks. The
veteran stated that he had some sleep disturbance and
believed he had nightmares, but he did not recall them. He
reported that he grinded his teeth at night. He said he
isolated himself and avoided social activities. The examiner
commented that the veteran's description was unconvincing.
The veteran also stated that he had difficulty trusting
others, particularly people in government positions. He had,
to a degree, alienated himself from his family because of his
anger and irritability. He claimed to exhibit hypervigilant
behaviors, although he was unconvincing to the degree to
which this intruded or disturbed his daily life. He reported
that he had regular contact with a few friends. He said he
was quite disturbed over knowing that he would continually
experience further decrease in status at the Reserve base.
He felt a loss of status since he was no longer in the
Reserves. The examiner indicated that the veteran left the
interview emotionally stable, and denied any suicidal
ideation. He was quite vague about whether he planned to
seek counseling or treatment in the future.
A VA psychiatric examination was conducted in February 1995.
The examiner noted that the claims folder was reviewed. He
added that it was a most difficult interview due to the
veteran's difficulty in sticking to the point. He felt that
the veteran was truthful. The early part of the interview
occasioned considerable doubt as to the nature of his
difficulty, because of his extreme anger, his sense of
injustice, his sense of resentment of the government and his
sense of rage over the demise of the logging industry. It
was noted that the veteran was casually dressed and somewhat
belligerent in manner, almost as if seeking a confrontation.
What gradually emerged was a facetiousness and a cynicism and
skepticism that were remarkable. The veteran indicated that
he was inclined to avoid social encounters and had alienated
his children with his outpourings of his beliefs. He was
bitter as to how his life had worked out.
The veteran complained of feelings of injustice. He was
mistrustful and suspicious. He was very embittered about
being out of service. Attempts at deeper penetration into
his defensive structure were met with some resistance, but it
gradually emerged. The examiner commented that it was his
opinion that the veteran had PTSD, manifested by
hypervigilance, intrusive recollections, some nightmares of
a violent nature and a state of anger of almost all-consuming
proportions. He admitted to vague suicidal ideation and he
made many utterances of a negative nature toward the state of
the country and its leadership.
On mental status evaluation, the veteran was oriented and
clear in sensorium. He was not delusional and was not
hallucinating. His talk was rambling, deviating from the
point, and increasingly showed evidence of preoccupation with
a sense of being ill-used and discarded by an unappreciative
country. The veteran displayed evidence of bigotry, and had
little regard for the feelings and opinions of others. His
judgment was clouded by his intense preoccupation. The
veteran's memory and concentration showed mild impairment,
but none of major significance. His remote memory was good.
He had a good fund of information. He had a direct gaze and
a penetrating mind that was somewhat offset by his
preoccupations. His mood was one of chronic depression.
Affect was peculiarly facetious and grimly humorous. His
overall demeanor was non-threatening and unchallenging. Some
of his condition was obscured by his attributing reactions to
a stressful military life in a somewhat disproportionate way.
The Axis I diagnosis was PTSD, manifested by cluster symptoms
as described, and was somewhat atypical in its presentation
due to macho and perfectionist attitudes in the veteran. The
Global Assessment of Functioning score was 60.
Based on the evidence summarized above, the RO, by rating
action in March 1995, granted service connection for PTSD and
assigned a 10 percent rating, effective April 15, 1994.
VA outpatient treatment records have been associated with the
claims folder. In March 1996, the veteran related that he
was very angry with the government for putting him out of the
National Guard Reserves after his myocardial infarction. He
reported unwanted intrusive Vietnam imagery at times, but no
flashbacks. It was noted that he awakened frequently at
night with sweats at times. He reported a longstanding
history of irritability and a quick temper. These had led
him to quit many jobs. He disclaimed any pattern of avoidant
behavior. No dissociative episodes were reported. It was
indicated that he had responded to medication for depression
that he had started to take in January. He had been having
decreased energy. He was not suicidal or hopeless. He had
no crying spells. He was able to function at work. He
stated that the medication decreased his irritability. A
mental status evaluation showed that he was oriented times
three and cooperative. His mood was somewhat depressed, but
there were no tears. He displayed linear thinking without
audio or visual hallucinations or delusions. Judgment was
good and insight fair. There were no cognitive deficits.
The impression was PTSD. It was noted the following month
that his wife told him that he was less irritable. He felt
less dysphoric. He continued to have some problem with
sleep. No new problems were reported.
By rating decision dated September 1996, the RO increased the
evaluation assigned for PTSD to 30 percent, effective April
15, 1994.
Additional VA outpatient treatment records show that the
veteran was seen in August 1996 and reported recent PTSD
symptom flare-ups. He seemed to be sleeping well. His mood
was euthymic most of the time. He was able to work. He
reported a lot of conflict in the work sphere. He was
particularly upset with the company policy of random
breathalyzers and urine testing during non-work hours. He
also remained angry with the United States government. It
was noted in October 1996 that his mood was fairly stabilized
on medication. He was having occasional dreams of Vietnam.
He spent most of the session complaining about work, but he
was still employed. In March 1997, it was noted that he was
fairly stable. There was no increase in depression or PTSD
symptoms. His sleep problems persisted, but he was coping.
The veteran was afforded a VA psychiatric examination in
October 1998. It was reported that his medication had
recently increased. He stated that he had seasonal affective
disorder and tended to get more moody and sad as the fall and
winter months approached. He could not get anything going.
He was mentally lacking in energy and zeal, and described it
as laziness. He tended to be disillusioned by much that he
saw around him and was skeptical and disillusioned. He
stated that he got along fairly well with his wife of long-
standing. On mental status evaluation, the veteran was
somewhat less discursive than at the time of the previous
psychiatric examination. He was perhaps more frustrated and
perhaps somewhat more depressed than when seen earlier. He
was somewhat arrogant and opinionated, but had high self-
esteem. He stated that neither his short or long-term memory
was particularly good, and he was forgetful. His
concentration was uneven. He saw his judgment as somewhat
self-destructive at times. He was gloomy about his future.
He had a few friends and got along well with those he had.
He denied being anxious and said that he had no attacks of
nervousness.
In summary, the veteran was described with some difficulty in
the previous report and was still somewhat difficult to
capture in words. He appeared to have an atypical PTSD. The
examiner stated that the effects of the veteran's myocardial
infarction continued and weighed on him mentally and
emotionally, and the occupational consequences thereof did
also. In addition, he had lost some employment related to
anger and impulsive pouring out of verbiage regarding
annoying encounters. This was thought to be an element in
his PTSD, and led the examiner to conclude that there was
some worsening of his condition since the previous
evaluation. The Axis I diagnoses were PTSD and dysthymia.
The Global Assessment of Functioning score was 55-60. It was
noted that the veteran was continuing with minimal treatment
involvement and he was on anti-depressants.
In a rating decision dated April 1999, the RO assigned a 50
percent evaluation, effective October 30, 1998, the date of
the VA psychiatric examination.
Analysis
The relevant schedular criteria with respect to psychiatric
disorders have changed during the veteran's appeal.
On and after February 3, 1988, the Schedule for Rating
Disabilities was amended to read as follows:
General Rating Formula for Psychoneurotic Disorders:
Ability to establish or maintain effective or
favorable 50%
relationships with people is considerably impaired.
By reason of psychoneurotic symptoms the
reliability,
flexibility and efficiency levels are so reduced as
to
result in considerable industrial impairment.
Definite impairment in the ability to establish or
30%
maintain effective and wholesome relationships with
people. The psychoneurotic symptoms result in such
reduction in initiative, flexibility, efficiency and
reliability levels as to produce definite industrial
impairment.
38 C.F.R. § 4.132, Diagnostic Code 9411 (effective prior to
November 7, 1996).
Words such as "mild", "considerable" and "severe" were not
defined in the VA Schedule for Rating Disabilities. Rather
than applying a mechanical formula, the Board must evaluate
all of the evidence to the end that its decisions are
"equitable and just". 38 C.F.R. 4.6 (1999). It should also
be noted that use of terminology such as "mild" by VA
examiners and others, although evidence to be considered by
the Board, is not dispositive of an issue. All evidence must
be evaluated in arriving at a decision regarding an increased
rating. 38 C.F.R. §§ 4.2, 4.6 (1999).
"The intended effect of [the revision] is to update the
portion of the rating schedule that addresses mental disorders
to ensure that it uses current medical terminology and
unambiguous criteria, and that it reflects medical advances
that have occurred since the last review." 61 Fed. Reg.
52695 (October 8, 1996).
The General Counsel of the VA concluded that it would have to
be determined on a case-by-case basis, whether the amended
regulation, as applied to the evidence in each case, was more
beneficial to the claimant than the prior provisions.
VAOPGCPREC 11-97 (March 25, 1997).
In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated
that the term "definite" in 38 C.F.R. § 4.132 was
"qualitative" in character, whereas the other terms were
"quantitative" in character, and invited the Board to
"construe" the term "definite" in a manner that would
quantify the degree of impairment for purposes of meeting the
statutory requirement that the Board articulate "reasons or
bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West
1991).
In a precedent opinion, dated November 9, 1993, the General
Counsel of the VA concluded that "definite" is to be
construed as "distinct, unambiguous, and moderately large in
degree." It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board
is bound by this interpretation of the term "definite." 38
U.S.C.A. § 7104(c).
The Board must next address whether the application of O.G.C.
Prec. 9-93 on appeal would be in violation of Bernard v.
Brown, 4 Vet. App. 384, 392-394 (1993). It is noted that
Bernard expressly addressed circumstances in which statutory
or regulatory provisions or analyses provided under the case
law of the Court had not been considered by the agency of
original jurisdiction. O.G.C. Prec. 9-93 does not fall
explicitly into one of those categories. Moreover, the
opinion does not change the rating criteria provided by
regulation; rather, it only construes what the term
"definite" means. In this case, the veteran has been
apprised of the governing law and regulations and has been
provided adequate notice of the need to submit evidence or
argument on the issue of entitlement to an increased rating
for his psychiatric disorder. The Board concludes,
therefore, that the veteran is not prejudiced by the
application of O.G.C. Prec. 9-93.
In addition, the Board notes that in VA O.G.C. Prec. Op. No.
3-200 (April 10, 2000), the General Counsel concluded that
when a provision of the VA rating schedule is amended during
the course of a claim for an increased rating, under that
provision is amended, the Board should determine whether the
intervening change is more favorable to the veteran; if so,
the Board should apply that provision to rate the disability
from and after, the effective date of the regulatory change;
and the Board should apply the prior regulation to rate the
veteran's disability for periods preceding the effective date
of the regulatory change. With these considerations in mind,
the Board will address the merits of the claim at issue.
The Board notes that a 10 percent rating was assigned
effective April 15, 1994, and that this was subsequently
increased to 30 percent, effective the same date. Since the
veteran has appealed the initial rating, the Board must
consider the applicability of staged ratings covering the
time period in which his claim and appeal have been pending.
Fenderson, 12 Vet. App. 119.
As noted above, the RO initially assigned a 10 percent rating
for PTSD. This was based on the report of a VA social and
industrial survey, as well as the findings recorded on a VA
psychiatric examination in February 1995. It is clear that
the veteran was depressed and he had some insight into his
condition. The veteran was preoccupied and this interfered
with his judgment. The Board points out that during the
social and industrial survey, the Board acknowledged that he
maintained contact with some friends. He is also in a stable
marriage of many years duration.
The veteran received outpatient treatment from the VA in 1996
and 1997. These records show that he was very angry in March
1996. He was irritable and had difficulty sleeping. It is
significant to note that he stated that he had responded to
the medication he had started earlier that year. This
statement was supported by his spouse who, the veteran said
in April 1996, confirmed that he was less irritable. These
records indicate that the veteran was not suicidal and was
fully oriented. Additional records in October 1996 and March
1997 reflect the fact that the veteran continued to be
employed, and he was reported to be stable.
In the opinion of the Board, the veteran's symptoms of PTSD
were not productive of than definite industrial impairment
prior to November 7, 1996. Similarly, the absence of such
symptoms as significant memory impairment and panic attacks
leads the Board to conclude that a higher rating is also not
warranted under the regulations effective November 7, 1996.
While the veteran did report some problems at work, the fact
remains that he maintained his employment. It was not until
the October 1998 VA psychiatric examination that symptoms
warranting a 50 percent rating for PTSD were demonstrated.
The Board finds that the medical evidence is of greater
probative value than the veteran's statements regarding the
severity of his service-connected psychiatric disability.
Accordingly, the weight of the evidence is against the claim
for a rating in excess of 30 percent for PTSD prior to
October 30, 1998.
II. An Increased Rating for Degenerative
Joint Disease of the Cervical Spine
Factual background
The service medical records show that the veteran was seen in
September 1986 and complained of a "stiff neck." It was
recurrent for two months and there was no known acute trauma.
The veteran related the gradual onset of a dull ache starting
at C7 and radiating up the paraspinal muscles to the base of
the skull. He had been seen the previous July, with a
diagnosis of myofascial spasm, and he was treated with
medication. Following an examination, the assessment was
myofascitis versus cervical arthritis. An X-ray of the
cervical spine in September 1986 revealed slight disk space
narrowing at C4-5 with marginal osteophyte formation of C4-5
and C5-6. No neuroforaminal compromise was evident. There
was no acute bone injury or alignment abnormalities
appreciated.
On VA Agent Orange examination in August 1994, the veteran
related a history of neck pain in service. It was indicated
that this resolved, and he had no further neck problems. He
had no complaints pertaining to the neck. He had no
radiculopathy or other associated symptoms. An examination
revealed full range of motion of the cervical spine. He had
some discomfort in the extremes of flexion, extension and
lateral flexion, bilaterally. There were no changes in the
paraspinal musculature in the cervical region. The
assessment was neck pain in 1986 and 1987, as described, with
no ongoing neck problems. The examiner noted that the
veteran had some discomfort in the extremes of motion of the
neck on examination, but otherwise, there were no remarkable
findings. The veteran seemed to have a mild positional
cervical strain, although it seemed to be well-managed
conservatively at the present time.
Based on the evidence summarized above, the RO, by rating
action in March 1995, granted service connection for
degenerative joint disease, C4-5 and C5-6, and assigned a 10
percent evaluation under the provisions on Diagnostic Codes
5290 and 5003.
A VA general medical examination was conducted in June 1996.
The veteran reported progressive problems with his neck since
the onset of pain in 1986. He stated that he began having
problems with radiculopathy in 1995, in alternating upper
extremities. He had radiculopathy in the upper arms, with
some numbness down into the fingers, and this occurred every
two to three months, usually with exertion of the neck. The
veteran tended to avoid strenuous exertion of the neck
because of this. He took Motrin every couple of months
because of neck pain. On examination, the veteran had normal
posture and gait. He was able to dress and undress without
difficulty. He had full range of motion of the neck, with 60
degrees of flexion and extension. Lateral flexion was to 40
degrees in either direction and rotation was to 55 degrees in
either direction. He had discomfort at the extremes of
motion. No crepitus was noted. The assessment was
intermittent neck pain, progressive since 1986, suggestive of
chronic cervical strain, with mild early degenerative
disease.
The veteran was afforded a VA examination of the spine on
April 24, 1998. He complained of neck pain on a daily basis,
for which he took Ibuprofen at least every other day. The
pain was exacerbated by any strenuous exertion. He avoided
all overhead work, and avoided any activities that involved
recurrent bending or twisting of the neck. He had no
significant problems with radiculopathy in the upper
extremities. He had no other medications for this. It was
also indicated that he had no other evaluations or treatments
for it. He had no other associated symptoms. An examination
disclosed that the veteran did not seem to guard the neck
when he walked, sat, stood, dressed or undressed, other than
mild increased discomfort when removing his tee shirt. He
had mild increased paraspinal muscular tone throughout the
cervical region, with minimal tenderness. He could flex his
neck to about 60 degrees, extend to 55 degrees, laterally
flex to 40 degrees to the left and to 35 degrees to the
right, and he could rotate 55 degrees in either direction.
The veteran had mild discomfort, particularly with leftward
flexion and leftward rotation. He had normal reflexes and
normal sensory and motor functioning in the upper
extremities. The assessment was degenerative joint disease
of the cervical spine with progressive pain. He continued to
have mild progression of his symptoms and currently was
having pain on a daily basis and it required Ibuprofen at
least every other day, and precluded any overhead work or
strenuous exertion of the neck. The examiner also stated
that no symptoms of clear or significant radiculopathy were
present, and there were no neurological abnormalities in the
upper extremities. Finally, the examiner indicated that the
veteran had mild impaired range of motion and pain with
movement of the neck.
Analysis
Arthritis due to trauma substantiated by X-ray findings will
be rated as degenerative arthritis. 38 C.F.R. § 4.71a,
Diagnostic Code 5010.
Degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. When however, the limitation of motion of the
specific joint or joints involved is noncompensable under the
appropriate diagnostic codes, a rating of 10 percent is for
application for each such major joint or group of minor
joints affected by limitation of motion, to be combined, not
added under diagnostic code 5003. Limitation of motion must
be objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. In the
absence of limitation of motion, a 20 percent evaluation will
be assigned with X-ray evidence of involvement of 2 or more
major joints or 2 or more minor joint groups, with occasional
incapacitating exacerbation. A 10 percent evaluation will be
assigned with X-ray evidence of involvement of 2 or more
major joints or 2 or more minor joint groups. 38 C.F.R.
§ 4.71a, Diagnostic Code 5003.
A 20 percent evaluation will be assigned for moderate
limitation of motion of the cervical spine. When slight, a
10 percent evaluation will be assigned. 38 C.F.R. § 4.71a,
Diagnostic Code 5290.
The veteran asserts that an increased rating is warranted for
his cervical spine. The record shows that the veteran has
been afforded several examinations during the course of his
appeal.
The medical examinations performed prior to the April 1998 VA
examination do not support entitlement to a rating in excess
of 10 percent. In fact, during the VA examination in August
1994, the veteran related only a history of neck pain in
service. He indicated that this resolved and he had no
further complaints pertaining to the neck, including
radiculopathy or other associated symptoms. There were also
no changes in the paraspinal musculature in the cervical
region. The veteran had full range of motion of the cervical
spine at that time, although he had discomfort in the
extremes of flexion, extension and lateral flexion,
bilaterally. Likewise, during the VA medical examination in
June 1996 the veteran had full range of motion of the neck,
with 60 degrees of flexion and extension, lateral flexion to
40 degrees, bilaterally, and rotation to 55 degrees,
bilaterally. However, the veteran again complained of having
discomfort at the extremes of motion. In addition, the
veteran complained of periodic episodes of radiculopathy in
his upper extremities. Also, X-ray examination completed
during the June 1996 examination showed that there were
degenerative changes of the lumbar spine.
The range of motion findings alone would not support
entitlement to a compensable rating because both examiners
concluded that there was full range of motion of the cervical
spine. However, the Board has also considered whether
factors including functional impairment due to pain as
addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would
warrant a higher rating. See Spurgeon, 10 Vet. App. 194; and
DeLuca v. Brown, 8, Vet. App. 202 (1995). Since these
examination findings indicate that the veteran had pain at
the extremes of motion and episodes of radiculopathy in his
upper extremities, which caused him to avoid strenuous
exertion of the neck, they support a finding of slight
limitation of motion when accounting for functional loss.
The Board also notes that the veteran would be entitled to a
10 percent rating even if this evidence did not support a
finding of limitation of motion. Since the X-ray evidence
shows degenerative changes of the cervical spine, a 10
percent evaluation would be applicable in the absence of
limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes
5003, 5010.
The Board finds that prior to April 24, 1998, the veteran's
cervical spine disability was not manifested by more than
slight limitation of motion, including functional loss due to
pain. The Board concludes that the criteria for a rating in
excess of 10 percent for degenerative joint disease of the
cervical spine prior to April 24, 1998 have not been met.
38 U.S.C.A. §§ 1155, 5107(a); 38 C.F.R. § 4.71a, Diagnostic
Codes 5010, 5290.
The VA medical examination performed in April 1998 supports
entitlement to a rating of 20 percent. The examination
findings show a slight reduction in range of motion of the
cervical spine when compared with the prior examination
findings. He could flex his neck to about 60 degrees, extend
to 55 degrees, laterally flex to 40 degrees to the left and
to 35 degrees to the right, and he could rotate 55 degrees in
either direction. This shows a mild reduction in extension
and lateral flexion to the right. Although the veteran
denied having significant problems with radiculopathy in the
upper extremities, he reported an increase in functional
limitations with activities and he now indicated that pain
was exacerbated by any strenuous exertion. He also avoided
all overhead work and any activities involving recurrent
bending or twisting of the neck. Since these examination
findings indicate that the veteran had at least slight
limitation of motion and increased pain, which further
curtailed his physical activities, they support a finding of
moderate limitation of motion when accounting for functional
loss. However, these findings do not support a rating for
severe impairment. The examiner noted that the veteran did
not seem to guard the neck when he walked, sat, stood,
dressed or undressed, other than mild increased discomfort
when removing his tee shirt. He had mild increased
paraspinal muscular tone throughout the cervical region with
only minimal tenderness. He had normal reflexes and normal
sensory and motor functioning in the upper extremities. In
fact, the examiner stated that no symptoms of clear or
significant radiculopathy were present, and there were no
neurological abnormalities in the upper extremities.
The Board finds that the April 1998 VA examination
demonstrates limitation of motion with pain causing moderate
limitation of motion, but the probative evidence does not
show more than moderate limitation of motion, including
functional loss due to pain. The Board concludes that the
criteria for a 20 percent rating for degenerative joint
disease of the cervical spine have been met. 38 U.S.C.A.
§§ 1155, 5107(a); 38 C.F.R. § 4.71a, Diagnostic Codes 5010,
5290. This rating is warranted effective April 24, 1998, the
date of the VA examination. Fenderson, 12 Vet. App. at 119.
ORDER
The claim for service connection for a heart disability is
well grounded. An increased rating for PTSD is denied. An
increased rating for degenerative joint disease of the
cervical spine is denied prior to April 24, 1998. A 20
percent evaluation for degenerative joint disease of the
cervical spine is granted, effective April 24, 1998, subject
to the governing regulations pertaining to the payment of
monetary benefits.
REMAND
In view of the Board's conclusion that the veteran's claim of
entitlement to service connection for a heart disability is
well grounded, further action by the RO is required for
consideration of the merits of such a claim, as set forth
below.
The Board notes that the veteran had a period of active duty,
as well as service with the Reserves. It appears that all
his service medical records have not been obtained. In this
regard, there are no service medical records from his initial
period of service in the 1960's.
In addition, the Board points out that the veteran is
claiming service connection for a heart disability on either
direct, presumptive or secondary bases. In Allen v. Brown, 7
Vet. App. 439 (1995), an en banc Court held that
"disability" as set forth in 38 U.S.C.A. § 1110 "refers to
impairment of earning capacity, and that such definition
mandates that any additional impairment of earning capacity
resulting from an already service-connected condition,
regardless of whether or not the additional impairment is
itself a separate disease or injury caused by the service-
connected condition, shall be compensated." Thus, when
aggravation of a veteran's non-service-connected condition is
proximately due to or the result of a service-connected
condition, such veteran shall be compensated for the degree
of disability (but only that degree) over and above the
degree of disability existing prior to the aggravation.
Thus, the question currently before the Board is whether the
veteran's service-connected PTSD caused or aggravated the
veteran's heart disability.
Under the circumstances of this case, the Board finds that
additional development of the record is required.
Accordingly, the case is REMANDED to the RO for action as
follows:
1. The RO should attempt to obtain all the
veteran's service medical records.
2. The RO should contact the veteran and
request that he furnish the names,
addresses, and dates of treatment of
all medical providers from whom he has
received treatment for his heart
disability at any time following his
discharge from service. After securing
the necessary authorizations for
release of this information, the RO
should seek to obtain copies of all
treatment records referred to by the
veteran.
3. The veteran should then be afforded a
VA examination by a specialist in
cardiology, if available, to determine
the nature and extent of his heart
disability. After the physical
examination and a review of the
veteran's medical records, the
examiner should be requested to
furnish an opinion concerning whether
it is at least as likely as not that
the veteran's heart disability is
related to service or if PTSD caused
his heart condition or aggravated it
beyond its normal course. If the PTSD
caused an increase in the severity of
the cardiovascular disease, the
examiner should specify the extent to
which the disability was aggravated.
The examiner should set forth the
rationale for all opinions expressed.
The report of the examination and the
examiner's opinion should be
associated with the veteran's claims
folder. All necessary tests should be
performed. The claims folder should
be made available to the examiner in
conjunction with the examination.
Following completion of the above, the RO should review the
evidence and determine whether the veteran's claim may be
granted. If not, he and his representative should be
furnished an appropriate supplemental statement of the case
and be provided an opportunity to respond. The case should
then be returned to the Board for further appellate
consideration.
The veteran has the right to submit additional evidence and
argument on the matter the Board remands to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
RICHARD E. COPPOLA
Acting Member, Board of Veterans' Appeals